Assessment Review Board

Commission de révision de l’évaluation foncière

ISSUE DATE: June 25, 2019

FILE NO.: RD 2019M17

Assessed Person(s): Carey Jeffrey Eidlitz, Susan Elizabeth Reece

Appellant(s): Carey Eidlitz

Respondent(s): Municipal Property Assessment Corporation (“MPAC”) Region 15

Respondent(s): Town of Oakville

Property Location(s): 230 Gatestone Avenue

Municipality: Town of Oakville

Roll Number(s): 2401-040-210-35600-0000

Appeal Number(s): 3259849 and 3340056

Taxation Year(s): 2017 and 2018

Hearing Event No.: 703565

Legislative Authority: Rule 123 of the Assessment Review Board Rules of Practice and Procedure

Request for: A review of the Board’s Decision WR 157843 issued on January 21, 2019

Heard: By written submission

Parties	Representative	Submissions
Kamen Laptev	Robert Baronowski	Requester
MPAC	No one appeared	Not Requested
Town of Oakville	No one appeared	Not Requested

DECISION DELIVERED BY PAUL MULDOON AND ORDER OF THE BOARD

INTRODUCTION

1Carey Eidlitz (“Requester”), represented by Robert Baranowski, filed a written Request for Review with the Assessment Review Board (“Board”) respecting the Decision of Member Dan Weagant issued on January 21, 2019, WR 157843 idlitz v Municipal Property Assessment Corporation, Region 15, 2019 CanLII 5476 (ON ARB) (“Decision”).

2The background to this Request for Review is as follows. The Requester is the owner of 230 Gatestone Avenue in the Town of Oakville (“Subject Property”). The Subject Property is a detached residence built in 1973 with a total building area of 3,079 square feet (“sq. ft.”), featuring four bedrooms, three and a half bathrooms, a swimming pool, and an attached garage. The assessment of Subject Property was returned at an assessed value of $1,618,000 for the 2017 and 2018 taxation years as of January 1, 2016. The Requester appealed the assessment to the Board on the basis that it was too high. Based on the sales of comparable properties in the vicinity, the Requester submitted the assessed value of the Subject Property should be between $1,376,000 and $1,520,000.

3The hearing was conducted on August 22, 2018, in the Town of Oakville (“Town”). Representatives for MPAC, the Town, and the Requester all appeared and made submissions to the Board. The issues before the Board were determining the correct current value of the Subject Property and whether an adjustment was required for equity purposes.

4MPAC’s representatives, Mr. John Cole and Ms. Leslie-Jane Hisey, appeared and submitted into evidence a valuation report and an equity report. The valuation report compared the Subject Property with five properties in the same neighbourhood that sold between June 2015 and August 2016. MPAC applied a Time Adjustment Factor (“TAF”) based on the sale of 247 residential properties in the area to adjust the values of the five properties to what they likely would have sold for on the valuation date of January 1, 2016. All five properties were noted as inferior to the Subject Property since it has a larger living area, and submitted a reasonable current value is $1,681,000. No notice of higher assessment was sought in accordance with the Board’s rules, and MPAC requested returned value of $1,618,000 be confirmed by the Board. MPAC’s equity analysis compared the TAS of 30 similar single-family dwellings. Based on this sample of 30 properties, MPAC took the position that no adjustment was necessary to achieve equitable assessment since the median Assessment to Sales Ratio (“ASR”) was 0.953, which lies within the range of equitable assessment.

5Ms. Susan Price appeared on behalf of the Town and supported MPAC’s returned value of $1,618,000. The Town submitted a brief comparison report that compared the Subject Property to four properties, two of which were included in MPAC’s comparable properties. The Town submitted the average TAS values per sq. ft. of the four proposed properties was $590.33, which is higher than the TAS value per sq. ft. of the assessed value of the Subject Property. The Town therefore submitted this supported the conclusion that the assessed value of the Subject Property was reasonable.

6Mr. Robert Baranowski appeared on behalf of the Requester and took issue with MPAC’s estimate since it was higher than the returned value. Mr. Baranowski submitted two approaches to assessment, summarized at paragraph 26 of the Decision. The first approach applied the sq. ft. TAS value of 225 Gatestone Ave. to the 3,079 sq. ft. of livable area of the Subject Property resulting in a current value of $1,511,789. Mr. Baranowski submitted the value would then be adjusted for equity under s. 44.3(b) of the Act for a reduction in assessment from $1,375,727 to $1,436,199. The second approach was to consider the returned value of $1,618,000 and adjust the assessment for an equitable reduction by applying the median ASR of the five properties submitted by MPAC of 0.91 to arrive at an assessment of $1,472,380. Alternatively, Mr. Baranowski suggested the Board could apply the median ASR of the 30 properties submitted by MPAC plus the two properties in its valuation report that were not included in its equity sample of 0.94 to arrive at an assessment of $1,520,920.

7In the Decision, the Board accepted two of MPAC’s properties as comparable to the Subject Property, namely 2175 and 2173 Adair Crescent. The mean TAS value per sq. ft. of these properties was $568.64 per sq. foot. When applied to the Subject Property’s living area of 3,079 sq. ft., the resulting value was $1,750,842 (rounded to $1,751,000). The Board therefore determined the correct current value was $1,751,000.

8In making its determination on equity, the Board found that the mean ASR of all 34 properties collectively submitted by the parties was the best evidence of whether a reduction in current value was required for equitable purposes. The mean ASR was 0.961, indicating to the Board that that it was very likely that similar single-family dwellings in the vicinity are generally assessed below their current value. The Decision therefore reduced its current value assessment of $1,751,000 by a factor of 0.961, resulting in an assessment of $1,683,000 (rounded) for the purpose of achieving an equitable assessment. Since neither MPAC nor the Town gave notice of intention to seek a higher assessment, the Board confirmed the returned assessment of $1,618,000 for the Subject Property for 2017 and 2018 tax years.

9The Requester argues that in reaching the Decision, the Board breached the rules of natural justice and procedural fairness; and, committed significant errors of law and fact, that, had they not been made, would have resulting in a different decision. The Requester asks that the Board order a rehearing of the issues determined on appeal.

10For the reasons that follow, the Board concludes that the Request for Review is denied.

RELEVANT RULES

11Requests for Review of the Board decisions are governed by Rules 120 through 123 of the Board’s Rules of Practice and Procedure (the “Rules”):

Request for Review

120. A party may request a review of any final decision of the Board, other than a decision pursuant to Rule 122, by filing a request in writing no more than 30 days after the decision was issued, including:

(a) a copy of the decision to be reviewed;

(b) the written reasons for the decision, as set out in Rule 112;

(c) the reasons for the request, addressing the factors set out in Rule 121;

(d) notice of any appeals or applications for judicial review that have been filed in relation to the decision;

(e) proof of service on all other parties to the proceeding;

(f) the remedy or relief sought; and

(g) the fee specified by the Board.

Grounds for Review

121. A request for review will not be granted unless the Board is satisfied that:

(a) the Board acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

(b) the Board made a significant error of law or fact such that the Board would likely have reached a different decision;

(c) the Board heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result;

(d) there is new evidence that could not have reasonably been obtained earlier and would have affected the result; or

(e) any of the situations in Rule 122 exist.

Review Order

123. Upon consideration of a request for review, or on its own initiative, the Board may:

(a) dismiss the request;

(b) reinstate the appeal, with or without conditions; or

(c) after providing all parties an opportunity to make submissions,

i. confirm, vary, or cancel the decision,

ii. order a rehearing on all or part of the matter, or

iii. order a motion to decide the review.

ISSUES

12Reviews will only be granted if the Board is satisfied that one of the grounds listed in Rule 121 are met.

13The Requester relies on the grounds set out in Rules 121 (a) and (b) and alleges that the Decision:

i. Acted outside the jurisdiction of the Board (Rule 121(a));

ii. Violated the principles of procedural justice (Rule 121(a));

iii. Made significant error(s) of fact and/or law; that had the error(s) not been made, the Board likely would have reached a different decision (Rule 121(b)).

DISCUSSION, ANALYSIS AND FINDINGS

The Requester’s Submissions

14With respect to Rule 121(a), the Requester takes issues with the Presiding Member’s finding at paragraph 22 of the Decision that the most comparable properties were properties 3 and 5 submitted by MPAC in their valuation report. The Requester argues MPAC’s properties 3 and 5 were not the most comparable, and therefore the Board acted outside its jurisdiction and breached the rules of natural justice and procedural fairness by creating their own views and evidence. Further to this, the Requester alleges the Presiding Member’s created an apprehension of bias by disregarding of 225 Gatestone Avenue from its analysis of current value, set out at paragraph 23 of the Decision. The Requester submits the Decision exhibits and an abuse of discretion in weighing the evidence, and relies on the principles of fairness set out the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699 (SCC) (“Baker”). Related to this submission, the Requester argues the Presiding Member failed to act in a judicial manner by substituting the evidence with his own unsupported opinions contrary to Marathon Realty Co. v. Ontario (Regional Assessment Commissioner, Region No. 7), [1979] O.J. No. 1090 (Div. Ct.), (paragraph 33).

15The second issue raised by the Requester is that the Board committed errors of law in the Decision, such that had the errors not been made would have reached a different decision. The Requester further submits the Board erred in finding MPAC’s properties 3 and 5 were the most comparable, and submits the Board violated the main “principles of comparability” by not including 325 Gatestone Avenue as a comparable property, citing the five factors applied by MPAC to assess properties (age of property; living area; location; lot dimension; and quality of construction). The requester argues the Board erred in weighing the evidence.

16Third, the Requester submits the Decision erred in its interpretation of “similar lands” and did not apply the proper legal test as set out in Municipal Property Assessment Corporation v Loblaw Properties Limited, 2017 ONSC 1299 (“Loblaw Properties”). The Requester argues the Board should have applied the five major factors applied by MPAC in its assessment of current value.

Findings

17The first issue raised is whether Decision acted beyond the jurisdiction of the Board or breached the principles of procedural fairness. The Board is not satisfied the Presiding Member conducted an improper investigation or made a determination based on their unsupported opinion. The Decision allowed for submissions to be made with respect to determining current value and equity, weighed the evidence submitted by the parties, and provided a comprehensive analysis to support its finding.

18At paragraphs 14 to 21, the Decision provides a summary of the comparable properties submitted into evidence by the parties. At paragraph 22, the Decision held that the most comparable properties submitted into evidence were properties 3 and 5 submitted by MPAC (2175 Adair Crescent and 2173 Adair Crescent) since they had similar lot size, same built year, the most similar living area, and have swimming pools. At paragraph 23, the Decision rejected 225 Gatestone Avenue as a comparable property since it had no swimming pool, smaller living areas, and a much smaller finished basement than the Subject Property. At paragraph 23, the Board applied the mean TAS per sq. ft. value of properties 3 and 5 and applied to the living area of the Subject Property to reach its conclusion of current value. The Decision based its conclusion on the properties submitted into evidence by MPAC, and applied the TAS per sq. ft. of the comparable properties to the living area (sq. ft.) of the Subject Property. This method of calculation to reach current value was the same method proposed by the Town, summarized at paragraph 18, and one of the methods proposed by the Requester, summarized at paragraph 20 of the Decision.

19Considering the accusations of bias, the legal test for raising a reasonable apprehension of bias is an objective one, as set out at paragraph 46 of Baker:

. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . [T]hat test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

20The Requester submits the Decision created a reasonable apprehension of bias by rejecting 225 Gatestone Avenue as a comparable property in its analysis of current value. The Requester does not make further submissions to support the contention that a real likelihood of bias existed and does not explain how the test from Baker applies in this context. The Board is not convinced that neither the evidence nor the submissions meets the threshold of creating a reasonable apprehension of bias as set out in the Baker test. The weight attributed to evidence in determining the correct current value is within the jurisdiction and discretion of the Presiding Member of the Board.

21The third issue raised is whether the Board erred in its application of s. 44.(3)(b) of the Act, such that, had the error not been made, the Board likely would have reached a difference decision. The Requester contends that the Board erred in its analysis of “similar lands” as set out in Loblaw Properties, namely, that “all points of comparison must be considered… One point of similarity such as use may be, but is not necessarily, determinative.”

22Clause 44.(3)(b) of the Act requires the Board to “have reference to the value at which similar lands in the vicinity are assessed” in order to test the fairness of the assessment. In Loblaw Properties, the Court found that the Board erred in its application of s. 44.(3)(b) in that the Board did not refer to the evidence submitted by the parties, fixated on a single point of similarity as determinative, and reached a conclusion that was evidently inequitable without offering justification.

23The errors committed in Loblaw Properties can be distinguished from the present case since the Decision based its analysis of “similar lands” on the evidence submitted by the parties, did not fixate on a single feature to the neglect of other factors submitted by the parties, and provided a thorough analysis to support its determination of equitable adjustment. As previously referenced in the background above, at paragraphs 25 to 35, the Decision summarized the evidence provided by the parties, accepted the 30 residential properties in the vicinity as submitted by MPAC in their equity report, as well as the four additional properties submitted into evidence that we not included in MPAC’s report. The Board found that this sample of 34 properties was the best available data for the determination of whether a reduction was required and applied the mean ASR of 0.961 to the current value of the Subject Property. This resulted in the assessment of the Subject Property being reduced from $1,751,000 to $1,683,000 for the purpose of achieving equitable assessment. Since there was no noticed filed under s. 40 of the Board’s Rules to seek a higher assessment, the Decision confirmed the returned assess of the Subject Property of $1,618,000 for the 2017 and 2018 tax years.

24Even in the event the Board did err by not explicitly setting out the multiple points of comparison, the Board is not satisfied this would have changed the outcome of the Decision. The Requester does not make submissions on how the properties were not sufficiently similar, does not point to any evidence neglected by the Board, and does not suggest the Decision’s adjustment based on the 34 properties resulted in inequity contrary to the mandate of the Board. The Board is therefore not satisfied that a review is warranted.

25Based on the reasons above, the Board finds the Requester did not meet the threshold for review required under Rules 121(a) or (b).

ORDER

26The Request for Review is dismissed.